The current real estate market has introduced a new wave of homeowners into community associations. Unfortunately, however, new faces usually result in familiar problems. One of the most common issues associated with new homeowners is unapproved modifications.
One of the underlying functions of any community association is to preserve the neighborhood’s semblance of uniformity. This responsibility, which is outlined in the association’s governing documents, is generally assigned to the board, or a board-appointed group of individuals, such as an architectural control committee. Either way, this group ensures compliance with the association’s design guidelines by evaluating owners’ proposed improvements or modifications (i.e., to their lot, unit and/or common areas).
In condominium associations, the primary focus is usually on internal modifications, items that may be visible from the outside, and improvements that could affect the common elements (e.g., hardwood floors, window treatments or satellite dish placement). Homeowner or townhome associations, on the other hand, are often only concerned with exterior changes (e.g., painting, landscaping and fence installations). Regardless of the type of association, the basic principles and methods for architectural control are the same.
As mentioned above, an association’s governing documents will usually outline the procedure for architectural control within the neighborhood. The procedure often requires owners to submit a written proposal to the reviewing authority for review and approval. It is then up to the reviewing authority to examine and respond to any such request with timeliness and consistency. Timeliness is important because many governing documents will limit the number of days an association has to respond to a proposed modification. Failure to reply to a submission before the deadline could result in an automatic approval of the modification, no matter how much it deviates from the neighborhood’s guidelines.
Consistency is also equally important. To illustrate, the reviewing authority should not be approving one type of modification for one owner and then later denying the same modification for another owner—at least not without a reasonable basis. There has been a lot of litigation over this issue, and the courts may overturn architectural control decisions if they seem arbitrary and capricious. This is why an association’s guidelines and procedures must be applied fairly, consistently, and in good faith. Otherwise, the reviewing authority may open themselves up to selective enforcement and legal disputes with contentious owners.
Another issue is that most governing documents usually require submissions to be approved or denied. This leaves little guidance on what to do if there are only small aspects of the submission that the reviewing authority does not want to approve. Some associations decide to “approve with conditions” or “deny as submitted.” To avoid misunderstandings or owners proceeding with unapproved work, it is probably best to “deny as submitted” and respond with something to the effect of “the reviewing authority will gladly reconsider the submission if you do x, y, and z instead.” This puts the association in a better position if the owner deviates from the reviewing authority’s written instructions.
It is also important to remember that neither an association’s board nor the board- appointed authority is a substitute for the local municipalities. Many governing documents will address this issue, but if not, an association should inform its members that the association’s approval of any improvement or modification does not equate to approval from the local municipality (e.g., the building department). An association cannot assume jurisdiction over local building codes and permits, so it should avoid potential liability by reviewing proposed modifications for aesthetic purposes only. The opposite is also true if approval first comes from the local municipality (i.e., approval from the local municipality does not mean approval from the association).
Finally, with all the new homeowners over the past year, associations and their management companies should prepare for new violations of the association’s architectural control policies and procedures. The most common excuse will probably be ignorance, but once the dust settles, the first question should be: Would the modification be acceptable if the owner had followed the correct procedure? If so, the association should allow the modification to stay and determine the appropriate sanction. If not, the association should act quickly to either try to put a stop to the ongoing work, or if it has already been completed, begin the violation process in accordance with its governing documents. Once the violation process has been triggered, the board, rather than the reviewing committee, is typically responsible for pursuing any enforcement action on behalf of the association. In the final analysis of any architectural control issue, associations should be firm, but they also need to apply reason and flexibility in some situations.